SCOTUS Will Hear Case of Arizona Immigration Law, Kagan Recuses

Kate Hicks

12/12/2011 4:54:00 PM - Kate Hicks

First healthcare, now immigration -- the Obama administration sure is keeping the Supreme Court busy. The Court has announced that it will hear the case of Arizona's contentious immigration law, SB1070, in the coming year.

The case, which has attracted national attention, pits Arizona against Obama administration, which sued and won court orders blocking implementation of most of the law at both the district and appeals court levels. Arizona’s law spawned a host of copycat laws in other states, and most of them have likewise seen their key provisions blocked by court challenges from the administration.

At stake is Arizona's goal of granting state and local police the power to check the immigration status of persons they encounter during their duties, such as traffic stops. Administration lawyers argue the state statutes infringe on what is federal responsibility to police the borders and set immigration policy.

Arizona Gov. Jan Brewer, whose signature on the law turned her into a national leader on immigration issues, said she expects the court will uphold the right of states to take action where the federal government has failed.

"Arizona has been more than patient waiting for Washington to secure the border," she said. "Decades of federal inaction and misguided policy have created a dangerous and unacceptable situation, and states deserve clarity from the Court in terms of what role they have in fighting illegal immigration."

Justice Elena Kagan has recused herself from the proceedings, as she was still serving as solicitor general when the Department of Justice filed its lawsuit. This opens up the possibility of a 4-4 tie, which would uphold the appellate court's ruling in favor of the Obama administration -- thus, for Arizona to win, the Court must rule 5-3.

It's interesting to note that her recusal means slightly less in this case than it does in the healthcare case, which she will hear. Because the lower court's ruling in the immigration law case favored the Obama administration, the tie would uphold the ruling -- a vote Kagan would likely cast as well. However, in the healthcare case, the Florida ruling overturned the Affordable Care Act. Thus, if Kagan recused, and the Court tied, Obamacare would be deemed unconstitutional.